Sir Patrick Elias | Judicial scepticism from the left: some thoughts

Judicial Power and the Left: Notes on a Sceptical Tradition is a stimulating and provocative selection of essays. It is part of Policy Exchange’s timely Judicial Power Project which focuses on the role of judges within the constitution. The voices in this collection of essays are (mostly) from the left which traditionally has tended to view judges with considerable scepticism bordering on outright hostility.

It is fanciful to believe that the judges would or could usher in the socialist nirvana. For those who wish to see socialism replacing capitalism as the prevailing ideology, as opposed to the majority of those on the left who have accepted the Labour Party’s position of compromise with capitalism, the judiciary offers nothing. This has got nothing to do with the somewhat hackneyed and simplistic notion that they judges all sing from the same male, white, middle class, establishment hymn sheet, chirping the anthems of the ruling elite. It is for much more mundane reasons relating to the judicial function and the nature of the common law. Judges cannot initiate law; someone has to bring a case before them, and for the most part the issues are framed by the arguments advanced by counsel. The nature of the common law, with its emphasis on property and contract rights, does not sit easily with a socialist vision, and the doctrine of precedent ensures that changes are introduced gradually and on a case by case basis. These are trite but in this context important observations. Any fundamental change to the law can only be achieved by Parliament, and in a constitutional democracy that is precisely how it should be.

The more interesting question is whether the courts could be relied upon to give effect to socialist legislation, or whether they would try and stymie it. Experience of sitting as a judge for some twenty years leaves me in no doubt whatsoever that there would no overt attempt to defeat such laws. The notion that judges would consciously and deliberately conspire to undermine such legislation I consider to be absurd. That is simply not how judges operate. In this context I confess that I found risible what Danny Nicol (in what I thought was otherwise a most interesting essay on ‘The Left, Capitalism and Judicial Power’) described as the class reading of the Supreme Court’s decision in Miller. He suggested that the Court’s decision was because, as part of the socio-economic elite, “the judges figured that their best prospect of achieving a soft Brexit lay in empowering the strongly pro-EU House of Commons.” This is conspiracy theory with a vengeance. It happens to ignore the fact that three of the socio-economic elite dissented. Do we have to assume that they were Bexiteers simply pushing their own agenda? Or might it just be the case that they were actually genuinely persuaded by the legal and constitutional arguments that this was the proper constitutional analysis?

That is not to say that judges can be free from their social and political values. One only has to have studied the history of the law of industrial conflict in this country to appreciate that. In that sense no judge can be wholly independent and free from influence, be he or she left or right, particularly where a judge’s strongly held values are challenged. I do believe, however, that judicial training and a conscious recognition of the need to set aside one’s own views, certainly reduces the likelihood of unconscious bias. The essay by Mike McNair on the steps taken by some judges to distort the common law in order to frustrate the operation of pro -tenant Rent Acts illustrates that it does not eliminate it. So do some of the examples given in Professor John Griffith’s polemic, The Politics of the Judiciary. But these are mainly examples from another era. In the past forty years there has been a dramatic change in the values and attitudes of society, and that applies to the judges too. Whilst Marxist judges may be thin on the ground, I suspect that there is a much wider range of attitudes and values – both political and social – amongst the judiciary now than there has ever been. One only has to think of the number of cases where the Supreme Court has upheld challenges against government austerity cuts, of which the recent UNISON case on tribunal fees (cited with approval in a typically thoughtful and balanced essay in this volume by Alan Bogg), to recognise that the politics of the judiciary are neither homogenous nor particularly conservative.

An interesting question is why many on the left, notwithstanding the traditional scepticism towards the judiciary, have with various degrees of enthusiasm, embraced the notion of giving judges greater power. The expanded judicial role stems from both the UK’s access to the EU and the adoption of the Human Rights Act. The former has conferred significant powers on the Court of Justice of the European Union and the latter on the domestic courts. There are a range of explanations for this shift in attitude, some which are brought out in these essays. Essentially it is suggested that the left has lost confidence in the ability of the nation state to establish even democratic socialism and this pessimism has drawn it to an acceptance of supra-national institutions together with a shift from collectivism to individual rights, as a method of at least insulating progressive values from being undermined by hostile national legislation. Indeed, in her essay, Helen Thompson makes a strong case for suggesting that this was precisely why the Labour Party changed its policy in the early 1990s to support UK involvement in the EU. The EU was more likely to protect workers’ rights.

Danny Nicol suggests that trust in these institutions may be misguided since a human rights’ perspective might put obstacles in the way of achieving democratic socialism. Chris Bickerton makes some similar points, whilst drawing on different evidence in support of his analysis. In ‘The Left’s Journey from Politics to Law’, Bickerton claims that new framework which is “defined by a commitment to human rights and to markets” constitutes an accommodation with capitalism rather than a transcendence of it. Helen Thompson and Richard Tuck also make the point that the constraints of the EU make it much more difficult to introduce socialist legislation than a system which confers power on a sovereign Parliament. Indeed, Richard Tuck claims that the NHS could not now be introduced because its creation involved the mass expropriation of private property in breach of human rights’ provisions.

There is an interesting tension in this analysis. Some on the left, faced for example with challenges to the present government’s austerity policies on human rights grounds, will be delighted with an activist judiciary. They will, for example, approve of last summer’s UNISON decision. But if and when a Labour government is in place, they will want a more subservient judiciary, demonstrating deference to the decisions of an elected government. The doctrine of proportionality in particular gives potentially significant power to the judges if they wish to exercise it. Some are more inclined to do so than others. In Judicial Power and the Balance of the Constitution, another collection of essays published earlier this year by Policy Exchange’s Judicial Power Project, I expressed my concern that some judges may not sufficiently have appreciated the limitations of the judicial function and the importance of political accountability. It is obvious that different judges have different views as to what judicial review in a human rights’ context should permit. This I think explains the regular disagreements in the Supreme Court in human rights’ cases far more convincingly than a belief that the judges are displaying a different set of values (although no doubt there is an element of that too). For most political—and some legal—commentators the question whether a court is doing a good job is assessed solely by whether they approve of the decisions reached or not. But that tells us nothing about the judicial merits of the case because it is indifferent to the integrity of the judicial reasoning. A critic cannot fairly criticise a judge for constitutional conservatism in one context and expect judicial activism in another.

Two other contributions to this selection of essays caught my eye for entirely different reasons. The essay by Gerald Rosenberg reflects a good old fashioned hostility to the judges of a relatively extreme kind, although focusing on the US Supreme Court. Never concede that the judges have done anything remotely liberal; it upsets the story of elitist establishment judges pursing a class agenda. Even when the judges have reached decisions supporting liberal positions – Brown v The Board of Education and Roe v Wade for example, there has to be some reason for withholding praise. So the judges are criticised either because in practice their decisions did not make much practical difference on the ground (Brown – as if that were the judges’ fault!) or because they were only following social forces which were moving society in that direction in any event (Roe) That is not to say that the US Supreme Court is a bastion of liberal principles protecting the weak and down trodden, and it is fair to point that out. Moreover, as I have indicated I fully support Rosenberg’s general point that it is a mistake to look to the judges to bring about transforming changes in society; that misunderstands the nature of the judicial process. But the extreme and polemical nature of the argument, giving no quarter to the judges, in my view undermines its potency.

The other contribution is from Keith Ewing and John Hendy. They raise a strong prima facie case – and give some chapter and verse – that the European Court of Human Rights has been displaying a considerable reluctance to engage with important labour law issues referred to the Strasbourg Court from the UK about whether the UK legislation on the right to strike and the right to collectively bargain is compatible with Article 11 of the Convention, particularly in view of the decision of the Court in Demir and Baycara v Turkey which adopted a very liberal interpretation of that provision. There have been some six references which have not even got past the first stage on the basis that they were manifestly ill founded, although they would appear to raise seriously arguable points of real importance. They suggest that the Strasbourg Court has given way to pressure as a result of criticism of that Court’s decisions by the UK government and as a result has failed to extend to the UK the same principles which it applies to other states bound by the Convention. It is an extremely serious charge which, if correct, goes to the heart of the independence and integrity of the Strasbourg Court.

Sir Patrick Elias PC QC is a former Lord Justice of Appeal. Sir Patrick was a Fellow of Pembroke College, Cambridge, and a university lecturer. He was called to the Bar (Inner Temple) in 1973, took Silk in 1990 and was elected a Bencher in 1995. Sir Patrick was appointed to the High Court in 1999 and the Court of Appeal in 2009, retiring in 2017.